On Monday, Lawfare readers awoke to find the new and improved Lawfare site. Bobby, Jack, and Ben introduced the site, and Ben announced the beginning of Omphalos, a Lawfare subsidiary site devoted to interdisciplinary coverage of the Middle East. Shane Harris guest-hosted the Lawfare Podcast and interviewed Ben about Lawfare’s history and its transition its new online home:
Probably to give us a chance to show off the new site's features, the Supreme Court chose Monday to release its decision in Zivotofsky v. Kerry. Sean Mirski summarized the opinion and examined the Court’s troublingly indeterminate analysis of exclusive presidential power. Jack discussed how Zivotofsky’s broad applicability may represent an important expansion of executive authority, and went on to ponder the New York Times’ endorsement of Zivotofsky’s acceptance of presidential signing statements. Paul Stephan argued that the opinion tells us more about the mercurial nature of the Court than anything else. Finally, Ryan Scoville studied the justices’ disagreement over the importance (or lack thereof) of foreign perceptions of U.S. law.
This week’s Rational Security also included a good deal of discussion on Zivotofsky:
Jane Chong weighed in on Lawfare’s latest “kerfuffle,” which broke out last week between Ben and the Times’ Charlie Savage over the most recent selection of Snowden documents to be released. Those interested in an in-depth summary of the documents should head to Jane’s post. Ben also posted another response, along with a concluding reply from Charlie Savage.
Clara Spera reported on proposed legislation in France that would vastly expand French surveillance capabilities under law. Relatedly, Wells alerted us to the release of a major British report on surveillance, which may foreshadow a reworking of surveillance practices in the United Kingdom.
In response to the recent hacking of the Office of Personnel Management, Paul pointed out that the real damage may lie in the compromising of security data for those who hold security clearances with the U.S. government. He also noted the troubled waters that surround Senate Majority Leader Mitch McConnell’s (R-KY) efforts to roll cybersecurity legislation into the NDAA. Also in cybersecurity, Mailyn Fidler examined the Department of Commerce’s proposal to limit sales of zero-day vulnerabilities outside the United States.
Paul brought to our attention congressional activity on the transition of control over the Internet Assigned Numbers Authority.
Stewart Baker posted the Steptoe Cyberlaw Podcast. This week’s guest was Dan Kaminsky, a cybersecurity researcher:
Wells linked us to the DC Circuit Court of Appeals decision in al Bahlul v. United States, a major ruling on military commissions.
Bobby examined the detention of Umm Sayyaf as a first pass at U.S. detention of captured ISIS members. R. Taj Moore described al Warafi’s filing of a supplemental memorandum arguing that his detention in Guantanamo is unjustified because armed conflict in Afghanistan has concluded.
In response to last weekend’s New York Times story on SEAL Team 6, Bobby considered the different issues raised by the reporting on Team 6’s involvement in covert actions. Kenneth Anderson let us know about a new paper by Alexandra A. Perina on the relationship of covert action to international law.
Bobby found some interesting provisions in the Intelligence Authorization Act of 2016 on covert action, cybersecurity, surveillance, and Guantanamo transfers.
Cody linked to the Department of Defense’s newly released Law of War Manual, which has been hotly anticipated for over two decades. On that note, Ken recommended a paper by Michael Schmitt and Sean Watts about international humanitarian law and opinio juris. The Book Review Editor also reviewed William Boothby’s Weapons and the Law of Armed Conflict.
The Book Review Editor also examined Diplomatic Counterinsurgency: Lessons from Bosnia and Hercegovina, by the Canadian lawyer and diplomat Philippe Leroux-Martin; and Alexander Orakhelashvili’s Collective Security, on the international law of the eponymous topic.
Sean Mirski provided us with a series of posts on the current territorial dispute between China and its neighbors over the South China sea, detailing the history and legal background of this hotly contested matter.
Jennifer Williams reported on the United Nations’ draft political agreement for Libya.
Yishai discussed an update from Israel’s Military Advocate General on the conclusion of a criminal investigation into the deaths of four children during the conflict in Gaza last summer. The children were killed in an Israeli missile strike on the Gaza beach, in what Yishai described as an “illustrat[ion] of how so many innocents can be killed despite the presence of best intentions and technology.” Jack examined Israel’s fraught relationship with international law in terms of its inability to adequately “play lawfare.”
Ben and Ken announced a reception for their book Speaking the Law: The Obama Administration’s Addresses on National Security Law.
And that was the week that was.